United States District Court, D. Delaware
BONNIE J. KENNY, Plaintiff,
UNIVERSITY OF DELAWARE, et al. Defendants.
filed this action against Defendants claiming violations of
the Due Process Clause of the Fourteenth Amendment (Counts I
and II), the Age Discrimination in Employment Act
("ADEA") pursuant to 29 U.S.C. § 623 (Count
III), the Delaware Discrimination in Employment Act pursuant
to 19 Del. C. § 711(a) (Counts III, IV, and V),
and the Equal Protection Clause of the Fourteenth Amendment
(Count VI). (D.I. 1 at ¶ 1). Presently before the Court
is Defendant's Motion to Dismiss all counts of Plaintiff
s Complaint pursuant to Fed.R.Civ.P. 12(b)(6). (D.I. 6). The
issues have been fully briefed. (D.I. 7, 9, 11). For the
reasons set forth below, Defendants' Motion is GRANTED as
to Counts I and II and DENIED as to Counts III, IV, V, and
dispute arises out of Plaintiff Bonnie J. Kenny's
termination of employment from the University of Delaware
("UD") in October 2016 at which time she was 54
years old. (D.I. 1 at ¶¶ 1, 4). Kenny began her
employment as the head coach of the women's volleyball
team at UD in February 2002. (Id. at ¶ 10). The
Complaint describes Kenny's tenure at UD as
"successful" and lists the many accomplishments of
the volleyball team with her leadership. (Id. at
¶ 11, 12). Additionally, the Complaint states Kenny
consistently received excellent performance evaluations
during her time at UD. (Id. at ¶ 15). In
November of 2013, Kenny married the assistant women's
volleyball coach, Ms. Cindy Gregory. (Id. at ¶
16). The Complaint alleges that all Defendants knew of the
October 3, 2016, UD and Kenny received a complaint from a
parent alleging Kenny mistreated a player. (Id. at
¶ 18). Two days later, Kenny met with Defendants Chrissi
Rawak, UD Athletic Director, and Thomas LaPenta, UD Human
Resources Director, to discuss the complaint. (Id.
at ¶¶ 20-21). At that meeting, Rawak and LaPenta
stated they must investigate the complaint while placing
Kenny on paid suspension, but also offered Kenny the option
of resigning with one year's salary and benefits.
(Id. at ¶¶ 21-22). On October 11, 2016,
Kenny informed UD that she wished to go forward with the
investigation. (Id. at ¶ 27). A UD athletics
spokesperson confirmed to the News Journal that Kenny was
placed on leave and refused any other comment. (Id.
at ¶ 28).
terminated Kenny without cause, as permitted by her
employment contract, on October 13, 2016. (Id. at
¶ 33). UD did not conduct an investigation into the
complaint filed ten days earlier, despite UD Policy 4-29
setting forth the procedure UD would adhere to when
investigating a complaint. (Id. at ¶¶ 26,
33). UD claimed its decision to terminate Kenny was due to
three previous losing seasons, although UD did not make
public statements regarding Kenny's termination.
(Id. at ¶¶ 32, 34). Approximately seven
months later, an article appeared in the UD student newspaper
with opinions from former UD women's volleyball players.
(Id. at ¶ 35). These opinions provided a mostly
negative picture of Kenny and her coaching. (Id. at
termination occurred in the middle of the regular volleyball
season which, she asserts, damaged her reputation.
(Id. at ¶¶ 33-34). Kenny also alleges that
UD's silence to the press and the student newspaper
article damaged her reputation further. (Id. at
¶ 39). Thus, Kenny asserts she was entitled to the
investigation described in UD Policy 4-29, as well as a
name-clearing hearing to protect her damaged reputation.
(Id. at ¶¶ 33, 62).
alleges that her termination was motivated by discrimination
based on her age, sexual orientation, and marital status.
(Id. at ¶¶ 73, 79, 85). After UD
terminated Kenny's employment, it replaced her with a 38
year old head coach. (Id. at ¶ 51). Over
Kenny's tenure, UD terminated five other female coaches
over the age of 40. (Id. at ¶ 49).
Additionally, four of those five coaches were homosexual.
(Id. at ¶ 50). Since Defendant Rawak's
appointment as UD Athletic Director in May 2016, she has only
hired coaches who are heterosexual, are married or divorced,
and have children. (Id. at ¶ 52). Additionally,
after Kenny's termination, her employment agreement
required UD to pay her base salary for three years.
(Id. at ¶ 43). Her spouse, Ms. Gregory, also
received UD health coverage. In January 2017, however, UD
terminated Ms. Gregory's health coverage. (Id.
at ¶ 47). UD continued to provide health coverage to the
spouses of two heterosexual male coaches during the time they
received their regular base pay after their terminations.
(Id. at ¶ 48).
March 2017, Kenny filed charges of discrimination with the
Delaware Department of Labor (the "DDOL") and the
Equal Employment Opportunity Commission (the
"EEOC"). (Id. at ¶ 30). In June 2017,
the DDOL and EEOC issued Kenny Right to Sue Notices. (D.I.
1-1 at 2, 5).
requires a complainant to provide "a short and plain
statement of the claim showing that the pleader is entitled
to relief" Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) allows
the accused party to bring a motion to dismiss the claim for
failing to meet this standard. A Rule 12(b)(6) motion may be
granted only if, accepting the well-pleaded allegations in
the complaint as true and viewing them in the light most
favorable to the complainant, a court concludes that those
allegations "could not raise a claim of entitlement to
relief." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 558 (2007).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Davis v.
Abington Mem'l Hosp., 765 F.3d 236, 241 (3d
Cir. 2014) (quoting Twombly, 550 U.S. at 555). I am
"not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In
re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d
198, 216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for imperfect statement of the legal theory
supporting the claim asserted." Johnson v. City of
Shelby, 135 S.Ct. 346, 346 (2014).
complainant must plead facts sufficient to show that a claim
has "substantive plausibility." Id. at
347. That plausibility must be found on the face of the
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to
draw the reasonable inference that the [accused] is liable
for the misconduct alleged." Id. Deciding
whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at
Violation of the Due ...